Powers Elevator Company v. Pottner
| Decision Date | 16 October 1907 |
| Citation | 113 N.W. 703,16 N.D. 359 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Eddy county; Burke, J.
Action by the Powers Elevator Company against F. J. Pottner. Judgment for plaintiff, and defendant appeals.
Affirmed.
S.E Ellsworth, for appellant.
When the subject of an act is announced in its title, means and instrumentalities may be created in the act for its accomplishment, but not vice versa. State v Nomland, 3 N.D. 427, 57 N.W. 85; Richards v. Stark County, 8 N.D. 392, 79 N.W. 863; Divet v. Richland Co., 8 N.D. 65, 76 N.W. 993; State v Woodmansee, 1 N.D. 246, 46 N.W. 970; State v Haas, 2 N.D. 202, 50 N.W. 254; Power v. Kitching, 10 N.D. 254, 86 N.W. 737; Paine v. Dickey County, 8 N.D. 581, 80 N.W. 770; Miss. & R. Boom Co. v. Prince, 24 N.W. 361; State v. Smith, 28 N.W. 241; Astor v. N.Y. Ry. Co., 20 N.E. 594.
The legislature may classify objects upon which the law is to operate, but the classification must be determined upon principle and be reasonable. Edmonds v. Herbrandson, 2 N.D. 270, 50 N.W. 970; Nichols v. Walters, 33 N.W. 800; Beleal v. N. P. Ry. Co., 15 N.D. 318, 108 N.W. 33; People v. Central P. Ry. Co., 23 P. 303; Dundee Mortgage Co. v. School District, 19 F. 359; State v. Mayo, 15 N.D. 327, 108 N.W. 36; Angell v. Cass Co., 11 N.D. 265, 91 N.W. 72; Miller v. Kister, 8 P. 813; In re Abell, 77 P. 621; Wagner v. Milwaukee County, 88 N.W. 577; Webb v. Downes, 101 N.W. 966; State v. Boyd, 5 P. 735; State v. Bargus, 41 N.E. 245.
Maddux & Rinker, for respondent.
An amendatory statute must be construed with the original act. Holbrook v. Nichol, 36 Ill. 131; People v. Whipple, 47 Cal. 592.
A law must have equality of operation upon persons according to their relation. State v. Fraternal Knights & Ladies, 77 P. 500.
This is an action to foreclose a mechanic's lien upon buildings situated upon land occupied by the defendant under the homestead laws of the United States. The sole question presented on the appeal pertains to the constitutionality of chapter 101, p. 129, Laws 1901. Two objections are urged in support of the contention that the law is unconstitutional: (1) That the subject of the act is not wholly embraced within its title; (2) That the law is not of uniform application. The title of the act is as follows: "An act regulating the filing and foreclosure of mechanic's liens upon lands held or occupied under a filing under any of the land laws of the United States."
The specific objection to the title is that it does not state the fact embodied in the body of the law, that a lien is created in favor of persons furnishing materials for or doing work upon buildings situated upon government lands. The act provides that materialmen and persons doing work upon buildings so situated shall have a lien upon such building and, after enforcing said lien, may remove the building from the land after a sale thereof on execution. The omission from the title of the fact that a lien is created by the act in favor of such persons is the basis of the contention that the act is unconstitutional and void, as contravening the provisions of section 61, article 2, constitution, which reads as follows: "No bill shall embrace more than one subject which shall be expressed in its title, but a bill which violates this provision shall be invalidated only as to so much thereof as shall not be so expressed in the title." This section of the constitution has been construed by this court in several cases. In those cases several principles have been laid down as guides in the construction of the section that should be applied in this case: (1) The law will not be declared unconstitutional on account of the defect unless it is clearly so. (2) The title should be liberally construed, and not in a strict or technical manner. (3) If the provisions of the act are germane to the expressions of the title, the law will be upheld. (4) The object to be gained by the enactment and enforcement of the constitutional provision is to advise the legislature and the public of the substance of the act and to prevent surprise, fraud and the enactment of laws upon incongruous and independent matters under one title. (5) The section of the constitution is mandatory upon the legislature and upon the courts. State v. Woodmanse, 1 N.D. 246, 46 N.W. 970, 11 L. R. A. 420; State v. Nomland, 3 N.D. 427, 57 N.W. 85, 44 Am. St. Rep. 572; Richards v. Stark County, 8 N.D. 392, 79 N.W. 863; In re Kol, 10 N.D. 493, 88 N.W. 273. Liberally construed we agree that the law is germane to and reasonably connected with what is expressed in the title to the act. The necessary implication connected with the idea of the filing and foreclosure of a mechanic's lien is that a lien is given by this law. The creation of a lien is not foreign or independent to the filing or foreclosure thereof. The words "filing and foreclosure," as used in the title, reasonable construed, mean the doing of everything necessary to perfecting the lien, and no lien can be filed or foreclosed that has not been or is not created by some provision of law, as there is nothing to file or foreclose. The broadest meaning that the words of a title are susceptible of may be given to them, and the law will not be declared invalid because the words are not well selected. The word "filing," as commonly used in reference to liens, indicates the doing of everything essential to perfecting a claim for a lien authorized by law, and not the mere leaving of the affidavit and account in the office of the clerk. The technical meaning of the words of a title should not be taken as limiting the provisions of the law. The choice of the language is a matter of legislative discretion, and courts will not nullify the legislative will because the language is not well chosen, if upon any reasonable view the language express the subject. Diana Shooting Club v. Lamoreux, 114 Wis. 44, 89 N.W. 880, 91 Am. St. Rep. 898. A person reading this title would not be justified in assuming that the act did not refer to the giving of a lien. The title suggests that the object of the law was to supplement the...
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